Social Sciences in China (Chinese Edition)

No.10, 2018

 

Criminalization and Improvements to the Penal System

(Abstract)

 

Shi Yan’an

 

As an important part of a country’s legal system, the construction and improvement of penal systems should be comprehensively considered in terms of the country’s basic political system, social development, and immediate governance needs. The fine-tuning of criminalization and the penal system suggest a two-in-one relationship: in a certain sense, the choice of a criminalization strategy is an optimized scheme for the penal system. China’s current penal system has a certain rationality, immediacy and historical legacy. Provided that we maintain its basic framework, we should follow the spirit of the rule of law while taking into account both the justice value of human rights protection and the efficiency value of social governance. Fine-tuning this penal system means abolishing administrative detention and other administrative laws that fall under public security management. We should also optimize the type of penalty under these laws and include all penalties that involve deprivation of liberty under criminal law. Deprivation of liberty should be the criterion for distinguishing the respective scope of adjustment of criminal law and regulations that include penalties, because deprivation of liberty has the general effect of social exclusion; that is, its leads to the relative isolation of individuals from their social communities. Therefore, judgement of the punitive nature of penalties should be the main basis of the due limits to the scope of criminal law adjustment. We can then seek a reasonable and balanced strategy for criminalization with a view to developing a just and reasonable penal system.